Cederson v. Oregon R. & Nav. Co.

Decision Date12 November 1900
Citation38 Or. 343,62 P. 637
CourtOregon Supreme Court

Appeal from circuit court, Wasco county; W.L. Bradshaw, Judge.

Action by N.O. Cederson, as administrator of the estate of William Cederson, deceased, against the Oregon Railroad & Navigation Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action for the recovery of damages for the killing of one William Cederson through the alleged negligent acts of the defendant company in operating its railroad. The complaint states, among other things, "that on the 4th day of November, 1896, and for a long time prior thereto, the defendant was engaged in the operation of a railway from Portland, Or., to Huntington, in the same state; that said road runs through certain property belonging to the Seufert Bros. Company, a few miles above Dalles City, in said state that on the said 4th day of November, 1896, the said deceased was in the employ of said Seufert Bros. Company, and that on said day, while passing over the premises of the said Seufert Bros. Company, from the eating house of said company, where he took his meals, to the place where he slept, and while rightfully and lawfully going across the premises of said Seufert Bros. Company, from one place to the other, as he had a right to do, the said defendant was running one of its trains along its said road in close proximity to where the said plaintiff's decedent was walking; that in running and operating said train along said road the said defendant and its employés negligently and carelessly operated over said road a truck and car which were too wide for said track and the wheels of which car, and the flanges thereon, were cracked, broken, and unsafe, and so negligently and carelessly operated said train, and the engine and cars attached thereto, that by reason of said negligent and careless operation, and by reason of said truck and car being too wide and out of gauge with said track, and by reason of the bad, broken, and cracked condition of the wheels of said car, and by reason of all of said things combined, said car and other cars attached to the same, jumped the track, while passing along said road, at a point opposite, or nearly opposite, where plaintiff's decedent was walking, as hereinbefore alleged, and ran and was thrown upon and against plaintiff's said decedent, causing him great bodily injury and death."

The defendant moved the court to require the plaintiff to make the following clause of the complaint, namely, "and so negligently and carelessly operated said train, and the engine and cars attached thereto, that by reason of said negligent and careless operation," more definite and certain, by stating the acts and things constituting the negligent and careless operation of the said train or engine or cars attached thereto. The plaintiff, in resisting the motion, filed an affidavit wherein he averred that he stated in his complaint the facts in relation to the negligence of the railroad company as fully as he was able; that he believed, from the circumstances of the wreck, there was negligence on the part of the defendant in operating said train over and beyond which he is able to point out specifically; that the information relating to the particular details thereof was entirely within the breasts of the defendant's employés, and as to what the particular acts of negligence were he was unable to state. The motion was overruled, and constitutes one of the assignments of error.

The defendant answered, and denied that its railway runs through the property of Seufert Bros. Company, and other allegations of the complaint, and set up two separate defenses. The first is, in effect, that defendant was at the time of the accident engaged in the operation of a railway, and that it, and its grantors and predecessors in interest, had been for more than 20 years, and was then, the owner, and in adverse and exclusive possession, of the right of way upon which said railway was constructed and operated; that in the usual course of its business it received from other connecting lines certain freight cars for transmission, and that at the time designated in the complaint one of these cars became derailed, without fault or omission of the defendant, and by reason thereof was thrown from the track upon the deceased who was upon the said right of way, whereby he was killed that said car was not the property of the defendant, but that it had been repeatedly and carefully inspected by the connecting lines and by the defendant, and found at all times to be in safe and good condition, and that at the time it was not loaded beyond its capacity, or being run at an unusual rate of speed. By the second, it is alleged that at the time of the accident the decedent was on the lands and right of way of the defendant, and in close proximity to the railway line at a point thereon where a cut had been made by the defendant and grantors in the side of a rocky bluff, and between said bluff and the railway; that he was not a passenger nor in the employ of the defendant, and well knew the danger of his position by reason of the operation of the train of cars upon said track; that he knew said train was approaching, and thereby assumed all risk of injury to himself; and that the injury complained of was the result of his own negligence and carelessness.

The reply put in issue the ownership of the alleged right of way, and many other allegations of the answer, and set up three separate defenses thereto: (1) That the Seufert Bros. Company, its predecessors and grantors, had been for more than 20 years, and was then, in the adverse possession of the locus in quo, under claim of right, continuously, exclusively, and without objection by the defendant, as a road and highway, from one portion of its premises to another, and that decedent was in its employ, and was passing over said highway in the usual course of his employment, when injured. (2) That the said Seufert Bros. Company, its predecessors and grantors, for a long time prior to the accident, went upon the immediate premises, under claim of right, and built upon and across the same a highway and road, from one portion of its premises to another, by blasting out a high bluff at great expense; that the defendant had knowledge of the making of said improvement, and acquiesced therein, by reason whereof it is estopped from questioning the right of said Seufert Bros. Company and its employés to pass over the same; that there was no other way of getting from the lower to the upper portion of its premises; and that the decedent was passing upon said highway while in its employ. (3) That for a long time prior to the accident said Seufert Bros. Company and the defendant had allowed, permitted, invited, and licensed the general public, and especially persons who were in the employ of said Seufert Bros. Company, to pass over and along the place where the said decedent was killed, and that he was passing over said premises at the time in pursuance of said license, acquiescence, and invitation, and was rightfully thereon.

Wirt Minor, for appellant.

A.S. Bennett, for respondent.

WOLVERTON, J. (after stating the facts).

There was a contention that the reply constituted a departure from the complaint, in that it set up a different title or right to the locus in quo from that contained in the complaint, and therefore that it was incompetent to permit the plaintiff, under the allegations of the reply, to establish the decedent's right to be at the immediate place where the accident occurred. The contention is based upon the mistaken idea that the complaint alleged that Seufert Bros. Company was the owner of the locus in quo. The allegation is that the road runs through its property, and that, while rightfully passing from said property, the decedent was injured and killed. Such allegation is not inconsistent with the defendant's ownership of a right of way for its road, and was, no doubt, employed as descriptive of the place rather than as a declaration of title and ownership. The defendant having answered that plaintiff's decedent was upon defendant's right of way, it was important to show by what right he was there. This was evidently the purpose of the reply, and in all that was material it was responsive to the answer, and in no respect a departure from the complaint. True, there was much testimony produced to show the ownership of the locus in quo, but it was permissible for the purpose of showing that it was upon the property of Seufert Bros. Company, the employers of the decedent.

Three other questions are presented, which arise under the pleadings. These are brought upon the record by the motion to make the complaint more definite and certain, and by objections to the introduction of testimony at the trial. It may be premised that, where the sufficiency of the complaint is drawn in question upon the admission of evidence, all intendments come to its support, whereas, if tested by a demurrer, it must be construed most strongly against the pleader. It is first urged that the complaint is fatally defective, in that it fails to state the particular acts and omissions constituting the negligence which conduced to the injury complained of. The general, and we have no doubt the prevailing, rule upon the subject is that "a declaration specifying the act the commission or omission of which caused the injury, and averring generally that it was negligently and carelessly done or omitted, will suffice." The language quoted is from 14 Enc.Pl. & Prac. p. 334, and the proposition is abundantly supported by the authorities. "Negligence" is treated as a qualifying term indicating the manner in which an act is done, and not as a mere conclusion...

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